Debabrata Mookerjee, J.
1. The three petitioners in this case were convicted under Section 188, Penal Code and sentenced each to pay a fine of Rs. 25/-, in default to suffer rigorous imprisonment for one month.
2. The disobedience charged related to an order under Section 144, Criminal P. C. which had been made on 24-8-1954 by Sri B. N. Poddar, a Magistrate of the First Class, Uluberia. In the absence of the Sub-Divisional Magistrate, Sri Pod-dar was in charge that day of his file and in that capacity made the ex parte order requiring the petitioners not to enter the disputed land or disturb the possession of one Annada Prosad Dalui and others, who were the first party, to the proceedings.
The dispute related to possession of a portion of plot No. 2844 of khatian No. 299 in mouza Kan-krole. The order was served on the petitioners on 26-8-1954 and on the very next day, it was alleged the petitioners trespassed upon the land in violation of the order. On 30-8-1954 an application was filed by Annada Prosad Dalui in the Court of the Sub-Divisional Magistrate of Uluberia complaining of disobedience to the order which had been promulgated on the 24th.
After a preliminary inquiry it having appeared to Sri B. N. Poddar that the order he had made on 24-8-1954 had been disobeyed, a complaint was filed against the petitioners under Section 188. Penal Code and they were eventually tried before another Magistrate of the First Class who in the end convicted and sentenced the petitioners as stated above.
3. The petitioners pleaded innocence and the defence was that the order was not a proper order and that it had not been duly promulgated. The learned Magistrate negatived these contentions and found the petitioners guilty who thereafter applied to this Court and obtained the present Rule.
4. Mr. Mukherjee appearing in support of this Rule has made several points. In the first place, it has been contended that the complaint in this case having been made by Sri Poddar, it was not a proper complaint in accordance with the terms of Section 195, Criminal P. C. The argument is based on Clause (a) of Sub-section (i) of Section 193 which provides that no Court shall take cognizance of an offence punishable under Section 188, Penal Code except on the complaint in writing of the public servant concerned.
It is said that the order of injunction that had been made in the case might have been made by Sri Poddar. But he was on the date functioning as Sub-Divisional Magistrate. Consequently, the order which was said to have been infringed or violated was the order of the Sub-Div. Magistrate and the only public servant who was competent under the terms of Section 195(1)(a) to make a complaint would be the Sub-Divisional Magistrate, Uluberia.
It is to be observed that on 24-8-1954 Sri Poddar made the order while acting as the Sub-Divisional Magistrate; but on the day the complaintwas made, Sri Poddar was no longer functioningas Sub-Divisional Magistrate but only as a Magistrate of the First Class. Mr. Mukherjee contendsthat it matters nothing that the order of injunction was made by Mr, Poddar which was more orless an accidental circumstance.
The public Servant concerned, according to Mr. Mukherjee would, therefore, be the Sub-Divi-sional Magistrate, Uluberia, whoever that person may be. I do not think there is substance in this contention in view of the terms of cl. (a) of Sub-section (1) of Section 195, Cri. P. C. The 'ex parte' order of Injunction under Section 144 of the Code was made by Sri Poddar while functioning as the Sub-Divisional Magistrate: it was his order that was alleged to have been violated or disobeyed, and the complaint which he made was, in my view, a valid complaint, although on the date he was not functioning as the Sub-Divisional Magistrate.
5. There is another branch of this argument to which I must refer. Mr. Mukherjee has contended that if the words of Clause (a) of Sub-section (1) of Section 195, Criminal P. C. be taken to mean the public servant personally, that might create difficulties in case the officer was transferred or was not available by reason of death or resignation.
That being the position, it is said, it is the officer and not the person who is referred to in Clause (a) of Sub-section (l) of Section 195. I do not think that there can be any difficulty whatever in a case where the public servant concerned is not available by reason of transfer or resignation or death, inasmuch as the Legislature has foreseen such contingency by providing in the clause itself that a complaint might be made either by the public servant concerned or by some other public servant to whom he is subordinate.
That being the position, I do not think I can accept Mr. Mukherjee's contention that the complaint in this case had no legal basis.
6. The second ground of objection raised to the validity of these proceedings is that on receipt of the petition complaining of disobedience of the 'ex parte' order of injunction, the Sub-Divisional Magistrate of Uluberia instead of making the complaint himself, referred the matter to Sri B. N. Poddar, Magistrate 'for disposal'.
The latter Magistrate purported to have received the petition by transfer and then he proceeded to hold an inquiry which ultimately resulted in a complaint being made by him against the petitioners. This complaint, was, of course, addressed to the Sub-Divisional Magistrate, Ulu-beria. Mr. Mukherjee has argued that the entire proceedings have been misconceived and that the initiation of the complaint which itself was pro-ceeded by these apparent irregularities or illegalities vitiated the conviction.
It is true that the petition which was addressed to the Sub-Divisional Magistrate complaining of disobedience to the 'ex parte' order of injunction was referred to Sri B. N. Poddar for disposal and the latter treated this order of the Sub-Divisional Magistrate as being an order of transfer in the usual course. The petition itself after setting out the circumstances in which the disobedience had occurred, prayed for a complaint under Section 188, Penal Code being made against these accused persons.
It may not have been strictly regular for the Sub-Divisional Magistrate to impart, by the order which he made, to the petition the appearance of a complaint; nor was it right for Sri B. N. Poddar to hold that he received the matter by transfer. But looking at the substance of the matter there cannot be the slightest doubt that what the learned Sub-Divisional Magistrate was doing was merely sending this petition to Sri B. N. Poddar in order that the latter might apply his mind to the facts stated in it inasmuch as it was he who had made the order 'ex parte' under Section 144 Criminal P. C. which wag alleged to have been disobeyed and was consequently the public servant concerned.
By use of the expression 'for favour of disposal' the Sub-Div. Magistrate obviously meant that Sri B. N. Poddar should deal with the matter of alleged disobedience to an order which he as public servant had made. Sri Poddar thereafter held an inquiry and ultimately made a complaint which was addressed to the Sub-Divisional Magistrate on receipt of which the petitioners were summoned and) the matter was transferred to the trying Magistrate who took evidence and proceeded to hear the case.
I do not think that in the circumstances that have happened, the mere fact that the order of the Sub-Divisional Magistrate or even of Sri Pod-dar were rather unhappily phrased would vitiate the complaint which was ultimately made by Sri Poddar. The proceedings antecedent to the complaint made by Sri Poddar are to my mind wholly immaterial. Those irregularities do not have any effect whatever upon the complaint itself which, to my view, was validly made.
7. The next question raised by Mr. Mukher-Jee seems to me to be substantial and requires fuller consideration. In the course of trial the prosecution produced and proved a certain document which was received in evidence as Ex. 8 upon which reliance was placed by the prosecution for the purpose of showing that the 'ex parte' order of injunction had been duly promulgated and the petitioners served with notice of that order.
Ex. 8 is a petition which was filed by the petitioner Becharam Kar on 28-8-1954 in the Court of the Sub-Divisional Magistrate, complaining that he had been ousted from his nut, thrown out and stranded at the instance of the first party by the police as the result of the 'ex parte' order.
Circumstances are set out in detail to which it is not necessary to refer; suffice it to say that the complaint was that the petitioner Becharam Kar had been ousted from the possession of the plot on which his homestead stood and in respect of which certain civil suits had already been pending against Annadia Prosad Dalui and others, and that at the instance of the latter the police in pursuance of the 'ex parte' order of injunction had ejected him from his hut and put a padlock on his living room.
These statements are contained in Ex. 8 which the prosecution tendered in evidence with a view to showing that the notice of the 'ex parte' order bad been duly served. Mr. Mukherjee has argued that in the circumstances disclosed by the statements contained in this petition and the oral evidence in the case, the 'ex parte' order of injunction was not a proper order, and as such the convictions of the petitioners are not justified.
Mr. Sen appearing on behalf of the State has, on the other hand, strenuously contended that once an order is made with jurisdiction, it is not open to anyone to challenge the propriety of the 'ex parte' order in a prosecution under Section 188, Penal Code for disobedience to that order. It is argued that the basic circumstance in a prosecution under Section 188 is whether an order has been promulgated by a public servant lawfully empowered to promulgate It and, according to Mr. Ben, as soon as that is established the order itself cannot be challenged on the ground of propriety.
8. Section 188, Penal Code occurs in Chap. 10 and it is one of the several sections dealing with various offences relating to contempt of the lawful authority of a public servant.
The section provides that if any person knowing that an order has been promulgated by a public servant lawfully empowered to promulgate such oraer, is directed to abstain from certain act or to take a certain order with certain property in his possession or under his management disobeys such direction, he is liable to be convicted and sentenced provided such disobedience causes or tends to cause obstruction, annoyance, injury or risk of injury to any person lawfully employed or if such disobedience causes or tends to cause danger to human life, health or safety, or if the act has a tendency to cause a riot or affray.
Mere disobedience of an order promulgated by a public servant is not in itself an offence unless it entails one or other of the consequences which the section itself mentions.
9. It is to be observed that the language used in Section 188 appears to make it clear that the order has to be promulgated by a public servant who is lawfully empowered to promulgate such order. Mr Sen has argued that the section does not say that the order must itself be a valid order in the sense that it must be a proper order.
There can be no doubt, however, that before a person can be prosecuted under Section 188, the public servant must be lawfully empowered to promulgate the order; but the question is that although the public servant might have been lawfully empowered to make an order of the kind which he has made whether it is open to the person accused of disobedience of such order to show that the order is in fact one which should never have been made.
There can be no doubt that the 'prima facie' requirement of the section is that the public servant should have been lawfully empowered to promulgate the order in question; but I do not think it is right to hold that it is not open to the accused men when prosecuted for disobedience to such order to show that the order was an improper order or utterly bad on the merits.
A Magistrate trying a charge under Section 188 has of course to proceed on the footing that the order, if proved! to have been made by a public servant lawfully empowered to promulgate it, is a good and valid order; but that does not necessarily mean that the accused is precluded from challenging that the order is one that should never have been made at all.
It is not impossible to conceive of a case where a public servant though lawfully empowered to promulgate an order makes one which cannot possibly be supported in any view of the case; in such case I think it could not have been the intention of the Legislature that the accused persons should be precluded from pleading that the order was bad on the merits.
It would of course be for the person charged to show that the order is bad on the merits and a Court trying a charge of disobedience to an order made by a public servant lawfully empowered to make it, will certainly be justified in proceeding that, 'prima facie', the order is a good and valid order; but that does not imply that the person charged cannot avail himself of the opportunity in his own defence of proving that the order was a thoroughly bad order on the merits.
Mr. Sen has argued that once it is held that an order made with jurisdiction by a public servant can be questioned on the merits, that would have the effect of sapping the very foundations of the authority of all public servants who happen to make or are called upon to make such orders. That is a consideration which does not at all Impress me.
All that can be said in favour of Mr. Sen's contention is that once it is proved that an order has been promulgated by a public servant who is lawfully empowered to promulgate it, there is 'prima facie', to start with, good ground for prosecuting a person. But it is a very different thing to hold that even if the person charged provided incontestable proof to show the utter worthless-ness of the order on the merits, that proof will be of no assistance.
Mr Sen has drawn my attention to a decision of this Court in the case of 'The King v. Darbarilal Shaw' AIR 1949 Cal 677 (A). That was a refer-ence under Section 438, Criminal P. C. which was dealt with by Sen, J. the learned Judge observed as follows:--
'It is not open to the Court trying an accused person for disobedience of an order under Section 144, Criminal P. C. to decide whether he would have passed such an order in the circumstances of the case. He has to take the order as a good and valid order unless it is shown that the order was a nullity by reason of the fact that the Magistrate had no jurisdiction or by reason of some other similar circumstances. He is not to superimpose his view on the propriety of the order'. These observations are not entirely in favour of Mr. Sen's extreme contention. The learned Judge seems to have thought that it was open to the accused to show that the public servant concerned had acted without jurisdiction and consequently the order made was a nullity or that the order was bad by reason of some other similar circumstances.
It is not easy to appreciate what the learned Judge meant to hold by qualifying the statement by saying that it was open to the accused to show that the order violated was bad by reason of want of jurisdiction or other similar circumstances. The learned Judge appears to have held that if the order was bad for want of jurisdiction or if it was otherwise fundamentally bad, the accused persons could plead that as a circumstance in answer to a charge of disobedience to that order. Therefore, it is not right to say that Sen J. limited the attack to jurisdiction only.
I imagine that similar circumstances must be circumstances of grave import, as for instance, where it is shown that order could not possibly have been made by any public servant in the circumstances of a particular case. I respectfully agree with Sen J. that a Court trying a charge of contravention or disobedience of an order of a public servant has to proceed on the footing that 'prima facie' the order is a good and valid order but that does not necessarily mean that the persons charged can in no circumstances show that the order although made with jurisdiction was otherwise fundamentally bad.
It is, however, to be observed that the learned Judge did not rest his decision in the case upon the point. It was in that sense an observation which is more or less In the nature of an obiter dictum. 'In any event I do not find anything in this case which will entitle Mr. Sen to say that in no case and in no circumstance, can a person charged with disobedience of an order show that the order itself was bad although made with jurisdiction.
Mr. Sen further relied upon a decision of the Patna High Court in the case of 'Rupan Singh v. Emperor' AIR 1944 Pat 213 (B) where Reuben J. observed that if the order made was with jurisdiction, it would not matter if the public servant concerned! had acted improperly in making that order. I do not think the learned Judge considered the extreme point of view, namely, whether it was at all open to the person charged with disobedience of an order of a public servant to plead and prove that the order itself though made with Jurisdiction was fundamentally wrong on merits.
In the case of 'Brojo Nath Ghose v. Empress' 4 Cal WN 226 (C) it was held by a Division Bench of this Court that to constitute an offence under 8. 188, Penal Code, it is necessary to show, first, a lawful order promulgated by a public servant; Second, a knowledge of the order & disobedience of it, and thirdly, the result that is likely to flow from such disobedience. It is indeed one thing to say that the public servant concerned was lawfully empowered to make an order and it is very different thing to say that the order itself was a lawful order in the sense of being a valid and a proper order.
In the case of 'Prem Chand Singh Roy v. Dharmadas Singh Boy' 9 CaJ WN 392 (D) it was held that an order under Section 144 which was actually made in the case could not properly be made under that section. There was disobedience alleged to that order but Henderson and Geidt, JJ., quashed the proceedings under Section 188, Penal Code for disobedience to such order. Their Lordships held:--
'the intended prosecution was for disobedience to an order, dated 22nd September last, which, amongst other things directed that the petitioners should refrain from collecting rents from any tenants on certain lands. That order which purported to have been made under Section 144, Criminal P. C. was not an order which could properly be made under the section. The order, therefore, directing the prosecution of the petitioners for disobedience to that order cannot stand',
10. The observations of Jackson, J., In the matter of the petition of Surjanarain Dass; 'Empress v. Surjanarain Dass' 6 Cal 88 (E) are to my mind quite apposite.
'When the Code of Criminal Procedure authorises the making of orders by executive authorities with the view of preventing a breach of the peace or for similar purposes, it has always been held, and is now enacted in the existing Code, that the propriety of such orders is not a matter of question in that state of things for the appellate judicial authorities. It is when the executive officers seek to enforce those orders by the infliction of penalties that the Courts have to step in and see whether the orders made were with authority or not. This was precisely the occasion on which it was the duty of the Sessions Judge to-consider whether that order was properly made or not'.
It must of course be said that the order in the present case was made judicially by the Magistrate and it becomes a duty, I think, of the Court trying a charge of disobedience to the order of a public servant to see whether the order violated or infringed was not only made with jurisdiction but was one which was not fundamentally wrong or basically inept.
11. I, therefore, hold that it is open to a person charged with disobedience to an order promulgated by a public servant lawfully empowered to promulgate such order, to plead in defence that the order though made with jurisdiction was utterly wrong or improper on the merits.
The accused persons cannot be precluded from pleading the worthlessness of the order in question on the merits although a Court trying a charge will proceed on the footing that the order if made with jurisdiction is 'prima facie' a good and valid order but that position is liable to be challenged by the accused in his defence and cannot be held to be sacrosanct.
12. Mr. Sen has argued that the only use to which prosecution wanted Ex. 8 to put was that the document showed that the petitioners or at any rate one of them had been served, and that it clearly proved that the petitioners had knowledge of the order. That is, of course one of the-essential elements of an offence under Section 188, Penal Code.
At the same time it is argued that no further use can be made of this document except the limited use that it only furnishes proof of the fact that the petitioners had knowledge of the order. I am afraid I cannot agree with this contention. The statements contained in the petition (Ext. 8) amount to an admission.
An admission has to be taken as a whole; you must take the whole of it or none of it; and if attention is paid! to the rest of the contents of the petition, there cannot possibly be any doubt left that one of the petitioners was complaining of the fact) that as a result of the 'ex parte' order of injunction he had been completely thrown out and stranded and locked out of his house. If the prosecution desired) to make use of this document, they have to take the whole of the document.
To my mind, the position is perfectly plain that one cannot truncate Ex. 8 and take a part land reject another. The law on the subject as regards the use of statements in the nature of admissions has been laid down by the Supreme Court in the case of 'Hanumant Govind Nargundkar v. State of Madhya Pradesh' : 1953CriLJ129 . Their Lordships observed as follows:
'Where the trial Magistrate and the Sessions Judge used part of the statement of the accused for arriving at the conclusion that a particular letter not having been typed on a particular typewriter must necessarily have been typed on another typewriter, such use of the statement of the accused was wholly unwarranted. If the statement of the accused Had been used as a whole it would have completely demolished the prosecution case'. It is, therefore, clear that the statement contained in Ex. 8 has to be taken into consideration as a whole. Keeping this in mind if one looks at the oral evidence in the case, there cannot be the slightest doubt that the ex parte order of injunction made by the Magistrate on 24-8-1954 was a bad order.
Apparently these petitioners were on the land. There were civil suits pending between the parties and as a result of this ex parte order disobedience to which is the subject-matter of the present charge, the petitioners were thrown out and completely stranded. As far as I can see this is surely not the purpose for which Section 144, Criminal P. C. was enacted.
In this case it does not appear that any evidence was taken by the learned Magistrate Sri Poddar before he made the order and the order thus made quite obviously operated to the prejudice of the petitioners to such an extent that it is quite impossible to defend that order on the merits. There cannot be any doubt on the evidence that there was dispute between the parties and that the petitioners were on the land.
According to Ex. 8 the petitioner Bechuram Kar had his huts, living room and cooking shed on it and as a result of the order made by the Magistrate he was locked out and completely stranded. There are no material appearing from the ex parte order itself which would indicate the gravity of the situation which might have justified the making of such urder without taking any evidence and apparently without any regard to the attendant circumstances of the case.
In my view it was as clearly open to the petitioners to plead & to prove that the ex parte order was a thoroughly bad order on the merits. This the petitioners tried to do and I think they have succeeded in showing that the order of injunction was a highly improper order which should never have been made in the circumstances of the case. I recall in this connection the observations of Harries, C. J., in the case of 'Hafizul Ekbal v. Gopal Sardar' : AIR1951Cal472 .
'In these cases (under Section 144 Criminal P. C.) Magistrates must ascertain upon evidence who is in possession and if it is necessary they then can issue orders restraining other persons from interfering with such possession. These orders, however, seem to be issued without any considerationwhatsoever.
Only the other day cases came before a Bench of which I was a member where a Magistrate had issued orders restraining the person in occupation from remaining in occupation. In other words, the learned Magistrate had evicted the person in possession and had placed the usurper in possession by means of an injunction under this section. Quite clearly Section 144, Criminal P. C. was never intended for such purposes'.
13. In this case the effect of the Magistrate's ex parte order has been really to evict the petitioners and put them on the road. I hold, therefore, on the materials on record that the ex parte order made was a thoroughly bad order and that the petitioners could not be held guilty under Section 188, Penal Code. The fact that the order had been made with jurisdiction did not have the effect of making it immune from attack that it ought never to have been made.
14. The result, therefore, is that the petitionsucceeds; the convictions and sentences are setaside 'and the Rule is made absolute. Fines, ifpaid, must be refunded.